A debt collector did not violate the Fair Debt Collection Practices Act (FDCPA) by leaving a voicemail message on a cell phone shared by the debtor with her boyfriend because it was not reasonably foreseeable that he would hear the message, a federal district court in Oregon has ruled.

In Peak v. Professional Credit Service, the plaintiff had entered into a payment plan with the debt collector providing for monthly automatic debits to repay a medical bill. When the collector's agent contacted the plaintiff on her cell phone to update her debit card information, the plaintiff affirmed that the cell phone number the agent had used was the best number at which to reach her. Upon attempting to reach the plaintiff at that number on the following day, one of the collector's agents heard the plaintiff's personalized greeting indicating the caller had reached the plaintiff who was unavailable and inviting the caller to leave a name and phone number. The agent left a message indicating that she had an important message from the defendant and that her message was "a call from a debt collector." 

The message was subsequently heard by the plaintiff's boyfriend, who had cancelled his cell phone service and used the plaintiff's phone when it was available. About a month later, the debt collector left an identical message on the plaintiff's cell phone which was overheard by a coworker when the plaintiff checked her voicemail messages at work using her cell phone's speaker function.

The plaintiff alleged that the debt collector had violated the FDCPA by communicating with a third party without her consent in connection with collecting her debt and by engaging in conduct the natural consequence of which was to harass, oppress, or abuse the plaintiff. She also alleged that the debt collector violated the Oregon Unfair Debt Collection Practices Act (OUDCPA) by communicating repeatedly with her with the intent to harass or annoy her.

The FDCPA defines a ''communication'' as the ''conveying of information regarding a debt directly or indirectly to any person through any medium." 

The Court rejected the debt collector's argument that the voicemail messages were not "communications," finding that it was undisputed that the messages' purpose was to further collection of a debt and that they also conveyed information about the debt, "namely, that it existed." According to the Court, because the messages indicated they were from a debt collector, it was reasonable for someone hearing the messages to infer the plaintiff had a debt in collection. It also rejected the debt collector's argument that the plaintiff had consented to her boyfriend and coworker listening to the messages, finding that the plaintiff had not given her "prior consent [to third party communications] directly to the debt collector" as required by the FDCPA.

Despite finding that the messages were "communications," the Court agreed with the debt collector's argument that the messages were not unlawful third-party communications because the collector had no reason to suspect anyone other than the debtor would listen to the messages.  Adopting a negligence standard, the Court ruled that a debt collector only violates the FDCPA prohibition on third-party communications if it "knows or should reasonably anticipate the communication will be heard or seen by a third party." The Court found that it was not reasonably foreseeable that the plaintiff's boyfriend or coworker would hear the messages because the plaintiff's outgoing message did not indicate she shared the cell phone and identified only the plaintiff as the phone's owner. In addition, the plaintiff had indicated that the cell phone number was the best contact method without instructing the debt collector not to leave messages. 

The Court observed that "the situation would be different if the outgoing message on a landline answering machine identified one person as the owner of the line" because "a caller may reasonably assume messages left on a cell phone's voicemail system will not be accidentally overheard as they must be accessed through the cell phone itself." In contrast, the Court noted the potential for someone near a landline answering machine to overhear a message as it is being played. (The Court did not indicate, however, when a collector would be deemed to know that an answering machine is connected to a landline.)

In addition to ruling that the debt collector was entitled to summary judgment on the plaintiff's third-party communication claim, the Court granted summary judgment to the debt collector on the plaintiff's claims that the debt collector had engaged in harassing, oppressive, or abusive conduct in violation of the FDCPA and made repeated communications with the intent to harass or annoy the plaintiff in violation of the OUDCPA. The Court found that the debt collector's "two brief, polite phone messages, left one month apart" did not rise to the level of conduct prohibited by the FDCPA and that the plaintiff had not pointed to any evidence showing that the debt collector's calls were made with the intent to harass or annoy.

Attorneys in Ballard Spahr’s Consumer Financial Services Group regularly advise clients on compliance with the FDCPA and state debt collection laws and defend clients in FDCPA lawsuits and enforcement matters. The Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).


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